Journal of Comparative Law
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Journal of Comparative Law VOLUME X, ISSUE 2 MEDIATION IN CONTEMPORARY CHINA: CONTINUITY AND CHANGE Guest Editors: FU Hualing and Michael Palmer FU Hualing Introduction ........................................................................1 and Palmer, Michael General Concerns: Policies, Practices and Reform WU Yuning People’s Mediation Enters the 21st Century ................25 ZHANG Xianchu Rethinking the Mediation Campaign ...........................44 ZHAO Yun Mediation in Contemporary China: Thinking about Reform ...............................................................................65 Mixed Processes GU Weixia When Local Meets International: Mediation Com- binded with Arbitration in China and Its Prospec- tive Reform in a Comparative Context .........................84 CHEN Yongzhu The Judge as Mediator in China and its Altern- atives: A Problem in Chinese Civil Justice .................106 XIAN Yifan Grassroots Judges of China in the Resurgence from Adjudicatory to Mediatory Justice: Transformation of Roles and Inherent Conflict of Identities ...............126 Substantive Issues Ali, Shahla Mass-Claims Mediation in China ................................142 DING Chunyan A Dose to Cure ‘Medical Chaos’: Medical Media- tion in China ...................................................................158 HUANG Robin Hui Securities Dispute Mediation in China ......................177 JIANG Jue Buying ‘Leniency,’ Selling ‘Justice’? A Critical Discussion of ‘Criminal Reconciliation’ (xingshi hejie) under China’s Revised Criminal Procedural Law ..................................................................................189 ZHAO Yixian Divorce Disputes and Popular Legal Culture of the Weak: A Case Study of Chinese Reality TV Mediation ........................................................................218 ZHAO Yuhong Mediation of Environmental Disputes .......................237 ZHOU Ling Consumer Council Dispute Resolution: A Case Study ...............................................................................254 ZOU Mimi, PAN Regulating Collective Labour Disputes in China: Xuanming, HAN Sirui A Tale of Two Actors .....................................................276 Articles Banakas, Stathis Non-Pecuniary Loss in Personal Injury: Topography Architecture and Nomenclature in the European Landscape .......................................................................291 CONG Wanshu A Preliminary Comment on the Chinese Draft Counterterrorism Law ..................................................343 Evgney, Guglyuvatyy Administrative Approaches to Tax Dispute Reso- and Evans, Chris lution: Alternative Perspectives from Australia and Russia.......................................................................365 Kellam, Amy How to Reincarnate Lawfully: The Rebirth of a Tibetan Religious Tradition with Socialist Characteristics ................................................................384 Legrand, Pierre Negative Comparative Law .........................................405 MacCormack, Geoffrey Recidivist, Multiple and Gang Thefts: The Transformation of the Law of Theft in Late Qing China ...............................................................................455 Noted Publications Legrand, Pierre Noted Publications ........................................................484 Reviews Nathan, Barrie Lawrence Michal Bobek: Comparative Reasoning in European Supreme Courts ....................................................................498 hualing fu and michael palmer Introductory Essay to the Special Issue: Mediation in Contemporary China: Continuity And Change FU HUALING Faculty of Law, University of Hong Kong; MICHAEL PALMER School of Law & the China Institute, SOAS, & IALS, University of London INTRODUCTION The main purpose of this Special Issue is to introduce readers to some of the key developments now taking place in mediation as a form of dispute resolution in China, a society in which mediation has long been a central processual and ideological feature of its legal culture. Generally speaking, there is in the People’s Republic of China (‘PRC’) a number of different institutional contexts within which mediation is used for handling disputes: ‘people’s mediation’, which is primarily a form of local community dispute resolution, judicial mediation carried out by judges in and around the court, administrative mediation as conducted by officials and often focused on specific areas of governmental responsibility (as, for example, is the case with environment disputes), mediation in arbitral proceedings, and private mediation carried out without specific institutional support. Over the past fifteen years or so, in response to the rapid economic and social changes taking place in mainland China (including, inter alia, a declining importance of the local community) there have been attempts to institutionalize mediation, to resource it better, and to give it more legitimacy and legal force. In handling cases that come before the courts, judicial mediation continues to be seen as a particularly useful process, offering flexibility and effectiveness in dispute resolution. Under the current Xi Jinping government, the Chinese Communist Party’s (‘CCP’) concern with political stability and social harmony has intensified and judges, people’s mediators, arbitrators and others have to consider the social and political impact of what they do, even more so now than in the past. JCL 10:2 1 Introduction MEDIATION AND LAW REFORM IN XI JINPING’S CHINA Dispute resolution is fundamentally a political process in authoritarian states.1 As commonly observed for China, the Party-State promotes and imposes mediation and informal dispute resolution particularly in times of crisis, perceived or real. This official promotion of mediation is strongly infused with a felt need to impose political control, justified by a responsibility to maintain stability and promote harmony. As a result, an emphasis on mediation for decision-making in the handling of disputes carries within itself the significant danger of serving as a ‘turn against law’. In contrast, in a more stable and relaxed atmosphere, such as that which emerged in China in the second half of the 1990s, there is space for a more nuanced and varied approach to the handing of disputes. In the case of the PRC, the more self-confident Party-State of twenty years ago felt able to tolerate and even to promote rule-based adjudication through an autonomous legal process. And it did so as part of a larger endeavour to develop the rule of law. The Chinese leadership of Hu Jintao and Wen Jiabo (2002-03 to 2012-13) came, however, to rely extensively on mediation and other ad hoc, and highly politically charged, measures so as to maintain order and promote harmony. Under the umbrella of this policy, disputants were to be persuaded, suppressed and even bribed to swallow their grievances, withdraw their claims or simply end their disputes. Legal and extra-legal actors were encouraged—and often required—to bypass legal rules and procedures in the interests of political expediency and achieving proper social impact in ‘resolving’ disputes. In promoting what was referred to as ‘grand mediation’ (da tiaojie), the distinction between legal and extra-legal processes was intentionally blurred and indeed became quite fuzzy. In the eyes of the Party-State, disputes were disruptive and should be prevented and ended as soon as they had occurred (or even before they had become manifest).2 This reemphasis has taken place alongside a number of other significant socio-political changes. On the one hand, there has been the growth of protests and riots over such issues as environmental degradation, failure to control corruption, employment conditions, ethnic tensions and land grabbing over the past 15 years or so. On the other, there has since the late 1990s been an internet revolution in China.3 The web has become an important forum for expression and organisation of discontent, and helped to make the post Jiang Zemin Chinese leadership increasingly feel the need to prioritise social stability and the CCP’s continued political domination. A policy of controlling on-line critical opinions and 1 As several of the essays in the second volume of Richard Abel’s seminal study of the politics of informal justice demonstrated quite early on in the emerging comparative analysis of the use of ADR-type processes in the handling of disputes: Abel, R (ed) (1982) The Politics of Informal Justice Vol 2: Comparative Studies Academic Press. 2 Study of this retreat from formal justice has not really been balanced in the relevant academic discourse by examination of the other side of the coin: what has been the fate of ‘informal justice’ and its potent symbol, mediation, in the changes that have taken place over the past decade and one half. With some notable exceptions, the literature on the many faces of Chinese civil justice on the mainland has tended to be rather limited in its gaze and to give insufficient attention to the centrality of mediation. Thus, for example, the fairly recently published book (2010, Cambridge University Press) entitled Chinese Justice: Civil Dispute Resolution in Contemporary China, edited by Margaret Woo and Mary Gallagher, mediation is given relatively limited attention, with rather more space devoted to issues of the courts, civil procedure law and the constitution. 3 For an analysis of the early development and social impact of the internet in China see, for example, Bi